Vol. 34, No. 4, Fall 2002

The Urban Lawyer,Vol. 34, No. 4, Fall 2002

Publication Date: January 23, 2003

Robert H. Freilich, Stephanie L. Hill & Cristin E. Keele, The Freilich Report: A High Court Seeking Balance Amidst an Unstable Nation, 34 URB. LAW. 757 (Fall 2002). The Supreme Court’S 2001 Term was marked by significant decisions in the areas of the death penalty, the Americans with Disabilities Act, school vouchers, federalism, and land use. The Court issued a landmark liberal decision on land-use regulation and the Fifth Amendment Takings Clause. Other liberal decisions involved the reversal of one of the Court’s own decisions, in holding that the execution of mentally retarded individuals constitutes cruel and unusual punishment under the Eighth Amendment, and the expansion of First Amendment freedom of speech rights. On the conservative side the Court expanded the scope of suspicionless drug testing to include the screening of students who participate in extracurricular activities, and a controversial decision was rendered by the Court’s conservative majority in favor of the use of public funds to finance school voucher programs.

Anthony Saul Alperin, Tahoe-Sierra— The Supreme Court Again Rejects Per Se Rules for Regulatory Takings Claims, 34 URB. LAW. 811 (Fall 2002). In Tahoe-Sierra, the Court continued to reject per se rules to govern the analysis of regulatory takings claims and reaffirmed the importance of Penn Central’s three-factor test for determining whether government regulations result in compensatory takings of property within the meaning of the Takings Clause of the Fifth Amendment. The decision also underlines the importance of identifying the “denominator” in regulatory takings analysis.

Diane K. Hook, Comment: The Religious Land Use and Institutionalized Persons Act of 2000: Congress’ New Twist on “Speak Softly and Carry a Big Stick,” 34 URB. LAW. 829 (Fall 2002). Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 to specifically prohibit various forms of religious discrimination and exclusion. This article addresses how RLUIPA is being used by individuals to obtain favorable land-use decisions, whether Congress has exceeded its powers to regulate such religious activity under the Commerce Clause, the Spending Clause, or the Enforcement Clause, and discusses some stratagems both from the local government’s perspective and the religious entity’s perspective to obtain favorable land-use decisions without litigating under RLUIPA.

Annual Review of the Law

Emerging IssuesJoseph Z. Fleming, The “United States”: An Analysis of Federal Maritime Commission v. South Carolina Ports Authority, 34 URB. LAW. 859 (Fall 2002). This report is about the case that “went even farther” and was decided “after the book was completed.” Regardless of whether you are liberal or conservative, pro-individual rights or pro-business rights, Federal Maritime Commission v. South Carolina State Ports Authority of May 28, 2002, is an extremely important decision.

Environmental Law

Linda C. Beresford, Brownfield Redevelopment: Laws and Cases Governing the Clean Up and Associated Cost Recovery of Contaminated Properties, Part I, 34 URB. LAW. 873 (Fall 2002). This report summarizes developments impacting the clean up of contaminated properties and the laws governing the cost recovery of such remediation efforts. In addition to the Brownfields Revitalization and Environmental Restoration Act of 2001 and new amendments to CERCLA under the Brownfields Revitalization Act, several significant cases changed the CERCLA cost recovery landscape, which plays such a significant role in brownfield redevelopment.

Peter A. Buchsbaum, This Year in Federalism, 34 URB. LAW. 893 (Fall 2002). Over the past decade, judicial federalism jurisprudence has limited federal impacts on local land-use decisions. Although quite a few of the key cases have not directly involved land use, their holdings clearly have diminished the power to override local land-use decisions.

Mitchell A. Carrel & Robert B. Foster, Sprouting Towers: Resolving the Struggle Between Cellular Towers and Nature Under the Telecommunications Act of 1996, 34 URB. LAW. 901 (Fall 2002). Section 704 of the Telecommunications Act of 1996 was intended to reach a balance that both preserved state and local zoning and land use control and promoted the growth of the personal communications services industry through the expansion of the national wireless communications network. For courts charged with applying and enforcing the Act, achieving the balance between local zoning authority and national telecommunications growth has proved elusive. Still, during 2001, courts for the most part were able to apply the Act as intended, mediating disputes between localities and providers by supporting localities that hold providers to the standards set by local zoning laws, yet protecting providers from the whims of disgruntled boards.

Daniel J. Curtin, Jr. & Elizabeth M. Naughton, Inclusionary Housing Ordinance Is Not Facially Invalid and Does Not Result in a Taking, 34 URB. LAW. 913 (Fall 2002). This article discusses a case of first impression from California, in which a California appellate court in June 2001 upheld a 10 percent inclusionary housing ordinance on new development imposed by the City of Napa.

Jonathan Davidson & Susan Trevarthen, 2002 Land Use ADR Report, 34 URB. LAW. 919 (Fall 2002). This 2002 ADR update reports on illustrative cases arising from local government involvement in land-use mediations and state legislative initiatives to resolve development disputes through nonlitigation means.

Robert W. Oast, Jr., Treading Water in Slow Economic Times and Recovering from Disaster: The Job Creation and Worker Assistance Act of 2002, 34 URB. LAW. 927 (Fall 2002). The focus of relevant legislative initiatives of the 107th Congress has shifted dramatically from economic development to economic recovery. Much of this shift has occurred in the wake of the terrorist attacks of September 11 on the World Trade Center Towers in New York City, the Pentagon in Washington, D.C., and the apparently aborted attack that ended in a crash landing in Pennsylvania.

Robert J. Sitkowski & Brian W. Ohm, Enabling the New Urbanism, 34 URB. LAW. 935 (Fall 2002). This is the inaugural report of a newly formed subcommittee concerned with legal aspects of the “New Urbanism,” a movement in planning that recently celebrated its twentieth anniversary. Simply put, New Urbanism seeks to reform conventional planning and real estate development in many different contexts, including new development and urban and suburban infill development. Traditional Neighborhood Developments, or “TNDs,” are one form of the New Urbanism. To date, only a few articles have been written about the legal aspects of TNDs and the New Urbanism. This subcommittee will annually update practitioners on legal developments in this area of practice, expanding the literature on this topic.

Edward J. Sullivan, Comprehensive Planning, 34 URB. LAW. 945 (Fall 2002). This report traces the role of the comprehensive plan in the land-use regulatory process. It categorizes cases dealing with the legislative requirement found in section 3 of the Standard Zoning Enabling Act and in the enabling legislation of most states. The report’s two theses are that: (1) the comprehensive plan has been invested with an increasing role in judging regulations so that separate plans are required and, once present, are a significant factor in evaluating regulations; and (2) the judicial discussion of comprehensive plans has shifted away from whether such plans are required and toward the manner of their implementation. This past year has been no exception, although there are more cases than in past years dealing with a separate requirement of a comprehensive plan.

Julie A. Tappendorf, Architectural Design Regulations: What Can a Municipality Do to Protect Against Unattractive, Inappropriate, and Just Plain Ugly Structures?, 34 URB. LAW. 961 (Fall 2002). Although zoning regulations are intended to protect against inappropriate uses and excessive height and bulk of structures, they generally are not intended to protect against “ugliness” in a community. Thus, an increasing number of municipalities have sought ways to protect against the “uglification” of their communities. Unlike many areas of the law in which “bright line” standards exist, aesthetics is difficult to evaluate because beauty has remained in the eyes of the beholder. Thus, without carefully drafted architectural design regulations in place, including clearly defined standards, the municipality faces a legal challenge to the validity of its ordinance by a property owner denied the right to build what he or she desires.

A. Dan Tarlock & Lora A. Lucero, Connecting Land, Water, and Growth, 34 URB. LAW. 971 (Fall 2002). This report examines some of the problems that have evolved in our processes to manage water, land, and growth and offers some possibilities for bridging the pervasive disconnects so that we can move toward truly sustainable communities. Although much of the dialogue surrounding “smart growth” is about the future we want to create (e.g., compact, pedestrian-oriented, mixed-use development patterns, and sustainable water supplies), more attention needs to be focused on the process—how to get from here to there.

Paul D. Wilson, When Sending Flowers Is Not Enough: Developments in Landowner Civil Rights Lawsuits Against Municipal Officials, 34 URB. LAW. 981 (Fall 2002). In the last year or so, federal appeals courts have decided at least six cases in which landowners responded to municipal denials of land-use permits by counterattacking for damages. The landowners prevailed in two of the six battles, including a case in which the Seventh Circuit found that a town president violated the equal protection rights of a condominium developer, even after the developer sent the town president flowers. In this post-Olech world, five of these six circuit court opinions focused on landowner equal protection claims. The sixth—one of the two successful claims—concerned the more traditional due process theory. This article discusses these cases.

Public Education Law

Lelia B. Helms, Recent Developments in Public Education Law: Post-Secondary Education, 2001–02, 34 URB. LAW. 995 (Fall 2002). The effects of years of Supreme Court decisions narrowing access to federal courts may be apparent in litigation involving postsecondary institutions. Except for disputes over pension benefits, few age discrimination claims were reported. Similarly the number of reported Americans with Disabilities Act and section 504 claims involving either students or employees appears to be decreasing, with many of those turning on issues of Eleventh Amendment immunity. Nonetheless, First Amendment and sex discrimination claims remain frequent sources of litigation. Disputes over both the administration of student financial aid and the long-term consequences of aid policies on students increased this year, comprising almost 15 percent of the reported cases. Despite the economic benefits of education, the burden of debt on students grows—a result of relentless tuition growth over the past decades. Many students spend decades dealing with creditors over the terms of repayment for their student loans. Also, problems between lenders appear to be more contentious.